5.  The applicants were born in 1942 and 1960 respectively and live in Tampere.
6.  The first applicant’s husband and the second applicant’s father, Mr Pentti Aho, died of cancer on 14 May 1992. He had been in receipt of sickness pension since 1981 and in 1986 he had been diagnosed with cancer of the larynx. He had been smoking cigarettes from 1941 to 1986.
7.  On 6 May 1988 Mr Pentti Aho instituted proceedings against two companies, British American Tobacco Nordic Oy (former Suomen Tupakka Oy) and Oy Rettig Ab (hereinafter “the tobacco companies”), claiming compensation for the cancer caused by smoking cigarettes. Essentially he based the claim on false and illegal marketing and on violations of a ban on selling harmful products.
8.  On 16 June 1988 the Helsinki District Court (raastuvanoikeus, rådstuvurätten) held its first hearing. Upon the parties’ request the case was adjourned until 6 October 1988. Subsequently the case was adjourned on several occasions. The District Court received oral evidence from about 30 witnesses, many of whom were medical specialists, including Professor X who claimed that medical science had not been able to prove that there was a causal link between tobacco smoking and cancer. At the 15th hearing on 28 January 1992, the plaintiff requested a postponement pending the outcome of a criminal case before the Espoo District Court, which was to be examined in April 1992. The request was, however, refused.
9.  On 6 February 1992 the Helsinki District Court rejected the action. As to the plaintiff’s request for a postponement, it found that the action was based on facts different from those presented in the criminal case. Having regard also to the fact that the compensation claim had been pending for several years, the District Court found that it should be decided without further delay. Noting that the selling of tobacco was not prohibited, it found that the sale of the product itself did not give rise to liability for damages. Nor did the District Court find that the marketing of tobacco products, having regard to the plaintiff’s awareness of tobacco-related health issues, could give rise to any liability for damages. It ordered the parties to bear their own legal costs.
10.  On 6 March 1992 the plaintiff lodged his appeal. He died on 14 May 1992.
11.  On 26 February 1993 the estate, consisting of the applicants, continued the claim on his behalf. The applicants also renewed their request for the examination of the appeal to be postponed until the Espoo District Court had given judgment in the criminal proceedings. The Helsinki Court of Appeal (hovioikeus, hovrätten) acceded to the request. It resumed the examination of the case on 21 July 1997.
12.  The compensation claim, the above-mentioned criminal case and another criminal case concerning perjury were examined jointly by the Court of Appeal.
13.  By its judgment (no. 3967) of 31 December 1998 the Court of Appeal, without holding a hearing, rejected the appeal. However, it did not endorse the District Court’s reasoning. It found that the tobacco companies had sought to mislead customers by failing to inform them of the possible detrimental effects of tobacco on health. Notwithstanding that this did not as such result in a right to damages for the customer, it affected the assessment of whether the tobacco companies had been negligent. In the present case the Court of Appeal found that there had been negligence. However, it did not find a causal link between smoking and the damage alleged. The Court of Appeal ordered the parties to bear their own legal costs.
14.  The first applicant but not the second sought leave to appeal and requested an oral hearing. On 23 June 1999 the Supreme Court (korkein oikeus, högsta domstolen) granted her leave to appeal. She and the tobacco companies each filed further observations in October, November and December 1999 respectively.
15.  By its judgment (no. 1196) of 7 June 2001 the Supreme Court, without holding a hearing, rejected the appeal. Although the Supreme Court found that there was a causal link between smoking and the damage alleged, it did not find a causal link between the damage and the tobacco companies’ marketing activity. It considered that during his 45 years of smoking cigarettes Mr Pentti Aho had known that tobacco posed a threat to his health. In these circumstances it was not credible that he had continued to smoke, trusting that it was not dangerous owing to the tobacco companies’ marketing of their product. Thus, he had knowingly put himself at risk. Accordingly, the damage did not result from the marketing of tobacco. The Supreme Court ordered the parties to bear their own legal costs.
16.  On 27 January 1992 Mr Pentti Aho instituted a private prosecution against, among others, the directors of the tobacco companies. He brought charges against them for misleading consumers, a marketing offence, endangering the life and health of others and aggravated assault. He relied on an opinion by the Consumer Ombudsman according to which the directors of the tobacco companies had engaged in illegal marketing to which the plaintiff as a customer had been subject from 1941 to 1986.
17.  The Espoo District Court held its first hearing on 22 April 1992. It decided to examine jointly the charges brought by Mr Pentti Aho and three other smokers also diagnosed with cancer. The public prosecutor did not join the private prosecutions. Following the death of Mr Pentti Aho, his estate continued the private prosecution. On 25 September 1992 the estate withdrew part of the charges, maintaining the charge concerning aggravated assault. At the third hearing on 5 February 1993 the estate, among others, requested a further postponement with a view to substantiating the charges and calling witnesses. On 2 April 1993 the District Court concluded that the proposed witnesses would not shed any light on the question as to whether the defendants had caused Mr Pentti Aho’s cancer and, if so, whether they had done so intentionally. As the case turned on whether the defendants’ conduct met the definition of aggravated assault, which was a question of law and not of fact, it rejected the request for a postponement.
18.  In its judgment of the same day the District Court rejected the charges, finding that the causal link between the damage and the defendants’ conduct, if any, had been broken owing to the fact that Mr Pentti Aho had put himself at risk. It ordered the estate to reimburse the defendants’ legal costs in the amount of 30,000 Finnish marks (FIM; 5,046 euros (EUR)).
A journalist covering the trial wrote the following:
“The court rejected the criminal charges in the tobacco case... . The sudden closure of the case was surprising. ... Both counsel for the plaintiffs and for the defence were totally amazed that the case was closed already on Friday [2 April 1993]. The plaintiffs had requested a postponement with a view to hearing witnesses at the next hearing.” (Helsingin Sanomat of 3 April 1993)
19.  On 30 April 1993 the estate appealed, requesting that the case be remitted owing to the District Court’s refusal to allow the hearing of witnesses. In the estate’s submission, at the beginning of the trial the District Court judge had allegedly said to counsel that he was going to severely restrict the estate’s right to present evidence. Subsequently, the judge denied the estate the possibility to have witnesses heard during the four hearings. At the fourth hearing, the judge suddenly decided to close the case.
In the alternative, the estate requested a hearing in the Helsinki Court of Appeal. The estate filed further observations on 12 April and 13 May 1994.
The present case, the above action for compensation and the perjury charges mentioned below were examined jointly by the Helsinki Court of Appeal.
20.  By its judgment (no. 3961) of 31 December 1998 the Court of Appeal, having noted the finding in the compensation proceedings that no causal link between smoking and the damage alleged had been established, rejected the appeal. It ordered the estate to reimburse the defendants’ legal costs in the sum of FIM 2,000 (EUR 336).
21.  The estate sought leave to appeal. On 4 May 2000 the Supreme Court granted the first applicant cost-free counsel retroactively from September 1992.
22.  By its decision no. 1308 of 20 June 2001 the Supreme Court refused leave to appeal. It appears from the decision that the Supreme Court had requested an explanation from the District Court judge regarding the alleged procedural shortcomings.
23.  Following the testimony given by Professor X in the compensation proceedings according to which medical science had not been able to prove that there was a causal link between tobacco smoking and cancer, the National Board of Medico-legal Affairs, on 7 May 1993, requested a police investigation. A pre-trial investigation was carried out into the matter, following which the public prosecutor, on 15 March 1994, brought charges against Professor X for perjury.
24.  The Helsinki District Court held its first hearing on 29 March 1994. The applicants joined the prosecution. The first applicant was granted partly cost-free counsel which covered her costs exceeding FIM 15,000 (EUR 2,523).
25.  Subsequently, it turned out that Professor X had received some FIM 280,000 (EUR 47,093) from British American Tobacco Nordic Oy in 1991 and 1992 and that he had not declared the income in his tax returns. Therefore, the public prosecutor on 2 or 4 April 1995 brought charges against him concerning two counts of aggravated tax fraud. The District Court ordered a joint examination of the charges.
26.  On 10 September 1996, during the 18th session, the public prosecutor informed the court that he wished to withdraw the perjury charges. The estate maintained the charges. The District Court held altogether 22 hearings in the case.
27.  On 19 March 1997 the District Court rejected all the charges and ordered the applicants to reimburse Professor X’s legal costs in the sum of FIM 25,000 (EUR 4,205). The judgment was not unanimous as two of the lay judges in their dissenting opinions found Professor X guilty of perjury and would have imposed a suspended term of imprisonment.
28.  The public prosecutor and the Tax Administration appealed to the Helsinki Court of Appeal as far as the tax fraud charges were concerned. The estate appealed as far as the perjury charges were concerned.
29.  The present case, the action for compensation and the criminal case mentioned above were examined jointly by the Court of Appeal. On 19 May 1998 it held a hearing as far as the tax fraud charges were concerned.
30.  By its judgment (no. 3962) of 31 December 1998 the Court of Appeal upheld the District Court’s judgment in so far as it had rejected the perjury charges. However, it convicted Professor X of two counts of aggravated tax fraud and imposed a fine. It increased the applicants’ liability for X’s legal costs pertaining to the District Court proceedings to FIM 88,816 (EUR 14,938). It also ordered the applicants to reimburse X’s costs in the written procedure in the Court of Appeal in the amount of FIM 235,288 (EUR 39,573). Further, it imposed on the applicants’ counsel, A. and S., joint liability for these costs totalling FIM 324,104 (EUR 54,510).
31.  The applicants, A. and S. sought leave to appeal. On 23 June 1999 A. and S. were granted leave. The applicants’ request was granted during the further examination of the case in so far as they had been ordered to reimburse the legal costs of Professor X.
32.  By its judgment (no. 1307) of 20 June 2001 the Supreme Court overturned the Court of Appeal’s judgment in so far as A. and S. had been ordered to reimburse Professor X’s legal costs. It also reduced the applicants’ liability for those costs to FIM 25,000 pertaining to the District Court proceedings and FIM 145,000 (EUR 24,387) pertaining to the Court of Appeal’s written procedure. The Supreme Court was not unanimous as Judges Y and Z would have upheld the Court of Appeal’s judgment.
33.  Following the judgment, on 26 June 2001, A. petitioned the Chancellor of Justice, alleging partiality on the part of Judge Y owing to the fact that A. had strongly criticised Judge Y with regard to a criminal matter in 1997.